The draft memo ICE wants comment on

In an unusually open move, U.S. Immigration and Customs Enforcement is seeking public comment on a policy that directs immigration officers on when they can request local police to temporarily detain immigrants suspected of being in the country illegally.

The draft memo states that immigration officers generally should not issue detainers – or an immigration hold – on a person charged only with a traffic-related misdemeanor unless or until the person is convicted, except for the following reasons:

• the alien has a prior criminal conviction;
• the alien previously has been excluded, deported, or removed from the United States or allowed to voluntarily return to his or her country of nationality;
• the alien is the subject of an outstanding immigration warrant or is the subject of a final order (of deportation);
• the alien is part of an existing criminal investigation;
• an articulable reason exists to believe that the alien presents a danger to national security or a genuine risk to public safety; or
• the traffic-related misdemeanor involves driving under the influence of alcohol or drugs, physical injury to a person or property, or flight from the scene of an accident.

The agency posted the draft memo on its web site Friday, and included an email address to send comments.

Request for Public Comment on Immigration Detainer Policy

ICE has drafted an immigration detainer policy to engage all interested stakeholders and solicit a broad range of views and comments. This is not a final policy and is disseminated solely to collect feedback. ICE is interested in a concrete assessment of how this draft policy, if issued and implemented, would affect the agency’s law enforcement partners, the operation of the criminal justice system, communities and individuals. Please respond with your comments to ICEDetainerComments@dhs.gov by Thursday, September 30, 2010.

Not known for its transparency, ICE has pulled back the curtain in a few areas as the agency’s leadership pushes various reforms, such as civil enforcement measures and overhauling immigration detention. The agency has also recently launched a new system to locate locked-up immigrants.

The draft policy comes on the heels of a federal judge’s decision to block key parts of Arizona’s controversial immigration law, and days after the Virginia attorney general issued a legal opinion that permits police to “inquire into the immigration status of persons stopped or arrested.”

The policy defines then instructs immigration officers that they can only issue a detainer on an immigrant who has been arrested on a criminal charge. Immigration officers, which include local law enforcement officers who are given authority to issue detainers under a provision known as 287(g), are not allowed to seek an immigration hold on someone who has been temporarily detained, such as a roadside stop.

The previous policy is here.

Earlier in the week ICE chief John Morton signed an interim memo, a summary of which, posted below, was also sent to ICE employees.

10074.1 Interim Detainers Directive

Only immigration officers may issue detainers. Immigration officers shall issue detainers only after a local law enforcement agency (LEA) has exercised its independent authority to arrest the alien for a criminal violation. Immigration officers shall not issue detainers for aliens who have been temporarily detained by the LEA (i.e., roadside or Terry stops) but not arrested.

If an immigration officer has reason to believe that an individual arrested by an LEA is subject to ICE detention for removal or removal proceedings, and issuance of the detainer otherwise comports with this policy and appears to advance the priorities of the agency, the immigration officer may issue a detainer (Form I-247) to the LEA.

Immigration officers are expected to make arrangements to assume custody of an alien who is the subject of a detainer in a timely manner and without unnecessary delay. If at any time after a detainer is issued, ICE determines it will not assume custody of the alien, the detainer should be withdrawn or rescinded and the LEA notified.

Immigration officers shall take particular care when issuing a detainer against a lawful permanent resident (LPR) as some grounds of removability hinge on a conviction, while others do not [e.g. removability pursuant to INA § 237(a)(4) and INA § 237(a)(1)(E)].

David Leopold, president of the American Immigration Lawyers Association, said exposing the draft memo to public scrutiny may lead to better policy.

“People who work in the system day in and day out – lawyers, advocates – may be able to offer constructive criticism the government hasn’t thought about,” he said.

Andrew Becker is a reporter for Reveal, covering border, national and homeland security issues, as well as weapons and gun trafficking. He has focused on waste, fraud and abuse – with stories ranging from border corruption to the expanding use of drones and unmanned aerial vehicles, from the militarization of police to the intersection of politics and policy related to immigration, from terrorism to drug trafficking. Becker's reporting has appeared in The Washington Post, the Los Angeles Times, The New York Times, Newsweek/The Daily Beast and on National Public Radio and PBS/FRONTLINE, among others. He received a master's degree in journalism from UC Berkeley. Becker is based in Reveal's Emeryville, California, office.